Body Camera Footage in Michigan Domestic Violence Cases

Police body camera video can be used as evidence in a Michigan domestic violence case, by either side. A Michigan statute, the Law Enforcement Body-Worn Camera Privacy Act, governs how long recordings are kept and who may obtain them, and the ordinary rules of evidence govern whether the video, and the statements on it, can be shown to a jury.^[1][2][6]

The act took effect January 8, 2018.^[2] It is short, and it leaves some questions unanswered. This page separates what the statute says from what it does not address.

What the body camera statute covers

The act defines a body-worn camera as a device worn by a law enforcement officer that electronically records audio and video of the officer's activities.^[7] It then deals with three things: disclosure, retention, and agency policy.

The act does not say when an officer must wear a camera or turn it on. Instead, a law enforcement agency that uses body-worn cameras must develop a written policy on their use by its officers and on the maintenance and disclosure of the recordings.^[4] Practice therefore varies from one department to the next.

How long is the video kept?

The retention periods are in MCL 780.316.^[1]

Type of recording	Minimum time the agency keeps it
An evidentiary recording	Not less than 30 days from the date the recording is made[1]
A recording that is the subject of an ongoing criminal or internal investigation, or an ongoing criminal prosecution or civil action	Until the investigation or legal proceeding is complete[1]
A recording relevant to a formal complaint against an officer or agency	Not less than 3 years after the date the recording is made[1]

An "evidentiary" recording is one of an incident or encounter, including a crime, arrest, search, use of force incident, or confrontational encounter with a citizen, that may be materially useful for investigative or prosecutorial purposes.^[7]

The 30-day floor is the figure to keep in mind when no charge has been filed, because the longer period depends on there being an ongoing investigation or prosecution.^[1] A written request to preserve the video, sent promptly, costs little.

If the video is gone or was never made, the statute addresses what can be inferred. The provision is written in terms of a complaint against a law enforcement officer or agency. If such a complaint is made after the retention period has expired, or the agency is unable to produce a recording related to the complaint in a criminal prosecution or civil action as a result of a technical failure or human error, the act does not create a presumption that the recording would corroborate either the prosecution's or the defendant's version of events.^[8] The act says nothing further about missing video, and the sources this guide relies on include no Michigan appellate decision applying the provision.

Who can get a copy?

Public records requests

A recording made by an officer's body camera in a private place is exempt from disclosure under the Freedom of Information Act.^[2] A "private place" is a place where an individual may reasonably expect to be safe from casual or hostile intrusion or surveillance, not including a place to which the public or a substantial group of the public has access.^[7] The act gives no examples; the inside of a private home is the kind of place the definition describes.

The statute carves out a group of people who may still request a copy of a private-place recording, unless the recording is exempt under section 13 of the Freedom of Information Act, the act's crime-victim protections, or its section on ongoing investigations:^[2][3]

• an individual who is the subject of the recording;^[2]
• an individual whose property has been seized or damaged in relation to a crime to which the recording is related;^[2]
• a parent of such an individual who is less than 18 years of age, or a legal guardian;^[2]
• an attorney who represents one of those individuals.^[2]

Two further limits apply. A recording retained in connection with an ongoing criminal or internal investigation is not a public record, to the extent that disclosure would interfere with law enforcement proceedings, deprive a person of a fair trial, or constitute an unwarranted invasion of personal privacy.^[2] And disclosure of any body camera recording is subject to the protections for crime victims in the Crime Victim's Rights Act.^[2] One of those protections exempts a photograph or other visual representation of the victim, including video, from Freedom of Information Act disclosure.^[9]

An agency may charge a fee for a copy, calculated under the fee section of the Freedom of Information Act.^[10] Requests for the written report are covered in How to get a domestic violence police report.

Discovery in the criminal case

Once a charge is pending, the defense can request video through the court's discovery rule rather than a records request. On request, the prosecuting attorney must provide any exculpatory information or evidence known to the prosecutor, any police report and interrogation records concerning the case, and any written or recorded statements by the defendant, including electronically recorded statements.^[11] On request, each party must also provide recorded statements by lay witnesses it may call and a description of, and an opportunity to inspect, tangible physical evidence.^[12]

The discovery rule does not use the words "body camera." Video is obtainable to the extent it falls into one of those categories. In misdemeanor cases the rule applies as well, except that the subrule covering witness statements and tangible evidence applies only if the defendant elects to request discovery under it.^[13] A party has 21 days to comply with a request unless the court orders otherwise.^[14]

If discovery is not provided, the court may order it, grant a continuance, prohibit the party from introducing the undisclosed material, or enter another order it considers just.^[15] A court may also limit discovery by protective order, weighing fair-trial interests against the risk to any person of harm, intimidation, embarrassment or threats.^[16] More detail is in Discovery in Michigan domestic violence cases.

Getting the video admitted: authentication

To authenticate an item of evidence, the party offering it must produce evidence sufficient to support a finding that the item is what the party claims it is.^[6] No Michigan authority in the sources this guide relies on addresses body camera video specifically. The general rules are these:

• Testimony of a witness with knowledge that an item is what it is claimed to be is one way to authenticate.^[17]
• In People v Hack, a videotape was properly authenticated by the testimony of two witnesses who stated that it reflected events they had seen on the day in question.^[18]
• A recording ordinarily may be authenticated by having a knowledgeable witness identify the voices on it.^[19]
• The judge decides only whether a prima facie showing has been made; a genuine dispute about whether the exhibit is authentic, and how much weight it deserves, is for the jury.^[20]

The words on the video are a separate question

Video shows things: the condition of a room, visible injuries or the lack of them, how people were behaving. It also records what people said, and each statement has to clear the hearsay rules on its own. Hearsay is not admissible unless the rules provide otherwise.^[21]

Statements by the complaining witness

A recorded statement to an officer may be offered as an excited utterance, a statement made while the speaker was under the stress of a startling event.^[22] It may also be offered under MCL 768.27c, the statutory exception for a statement to a law enforcement officer that describes the infliction or threat of physical injury, made at or near the time, under circumstances that indicate trustworthiness.^[23] A recording gives the judge a direct view of those circumstances.

If the person who made the statement does not testify, the Confrontation Clause applies as well, and a hearsay exception does not satisfy it.^[5] Statements are nontestimonial when the primary purpose of the questioning, viewed objectively, is to enable police to meet an ongoing emergency; they are testimonial when there is no ongoing emergency and the primary purpose is to establish past events potentially relevant to a later prosecution.^[24] In Hammon v Indiana, statements given to officers at the scene after the incident was over were testimonial.^[25] Body camera video often runs through both phases, from officers' arrival to a calmer interview, so the same recording can contain both kinds of statement. See Hearsay and the right to confront your accuser and Statements to police under MCL 768.27c.

Statements by the accused

A statement the defendant made, offered against the defendant, is not hearsay.^[26] Whether it can be used may depend on how it was obtained. Miranda warnings are required only when a person is subject to custodial interrogation, and the Miranda decision itself says general on-the-scene questioning about the facts surrounding a crime is not affected by its holding.^[27][28] Unless a person in custody received the warnings and waived those rights, statements obtained through interrogation cannot be used against that person.^[29] Video is frequently the best record of when custody began and what was asked. See Should you talk to police? and Motions to suppress evidence.

Showing only part of the video

If a party introduces part of a recorded statement, the other side may require the introduction, at that time, of any other part that in fairness ought to be considered at the same time.^[30] A court may also exclude relevant footage if its probative value is substantially outweighed by a danger of unfair prejudice or of misleading the jury.^[31]

How video is used by each side

Because the camera records the first minutes of the police response, it can corroborate or contradict the written report, the 911 call, and later testimony. A witness whose testimony differs from what the video shows may be challenged with it; any party may attack a witness's credibility.^[32] What officers are trained to do during those first minutes is described in What happens when police respond to a domestic call, and the audio that precedes the video is covered in 911 calls as evidence.

What people get wrong

"Body camera video is a public record anyone can request." A recording made in a private place is exempt from Freedom of Information Act disclosure except to the people the statute lists.^[2]

"If there is no video, the case gets dismissed." Nothing in the act says that. Its one provision on the subject says that where a recording related to a complaint against an officer or agency cannot be produced because of technical failure or human error, the act creates no presumption for either side.^[8]

"Police have to keep every recording for years." The baseline for an evidentiary recording is not less than 30 days.^[1]